Scott v. Shelton et al

Filing 7

OPINION Entered by Judge Joe Billy McDade on 12/8/14. IT IS ORDERED: Plaintiff's complaint is dismissed for failure to state a federal claim. By January 5, 2015, Plaintiff may file an amended complaint in accordance with the above opinion. If Pl aintiff does not file an amended complaint, then this case will be dismissed, without prejudice, and closed. Plaintiffs motion to request counsel is denied with leave to renew. The Court cannot consider the merits of the motion until Plaintiff shows that he has made reasonable efforts to find counsel on his own. (SW, ilcd)

E-FILED

Monday, 08 December, 2014 04:08:41 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
DENNIS SCOTT,
Plaintiff,
v.
VIRGINIA LYNNE SHELTON and
DR. MATUSEN,
Defendants.

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14-CV-3297

OPINION
JOE BILLY MCDADE, U.S. District Judge:
Plaintiff proceeds pro se from his detention in the Rushville
Treatment and Detention Center pursuant to the Illinois Sexually
Violent Persons Act. He seeks leave to proceed in forma pauperis.
The “privilege to proceed without posting security for costs and
fees is reserved to the many truly impoverished litigants who,
within the District Court's sound discretion, would remain without
legal remedy if such privilege were not afforded to them.” Brewster
v. North Am. Van Lines, Inc., 461 F.2d 649, 651 (7th Cir. 1972).
Additionally, a court must dismiss cases proceeding in forma
pauperis “at any time” if the action is frivolous, malicious, or fails to
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state a claim, even if part of the filing fee is paid. 28 U.S.C. §
1915(d)(2). Accordingly, this Court grants leave to proceed in forma
pauperis only if the allegations state a federal claim for relief.
In reviewing the Complaint, the Court accepts the factual
allegations as true, liberally construing them in Plaintiff's favor.
Turley v. Rednour, 729 F.3d 645, 649 (7th Cir. 2103). However,
conclusory statements and labels are insufficient. Enough facts
must be provided to "'state a claim for relief that is plausible on its
face.'" Alexander v. U.S., 721 F.3d 418, 422 (7th Cir. 2013)(quoted
cite omitted).
ALLEGATIONS
On May 28, 2013, Plaintiff filed a lawsuit against two security
officers (Ryan Kerr and Travis Smith), alleging that the officers had
intentionally prevented Plaintiff from receiving his kidney dialysis
for five straight days. Scott v. Smith, 13-CV-3157 (C.D. Ill.). Judge
Colin Bruce is presiding over that case, which is at the summary
judgment stage.
Plaintiff alleges that the Defendants in this case have harassed
Plaintiff in retaliation for Plaintiff’s lawsuit against officers Kerr and

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Smith and also in retaliation for unspecified grievances Plaintiff
filed.
Defendant Lynne Shelton’s alleged retaliation consists of the
following: (1) stamping Plaintiff’s incoming and outgoing mail with
a stamp stating “sexually violent person”; (2) delivering Plaintiff’s
“legal” mail to him unsealed and leaving the mail where others may
read it; and, (3) returning only the first page of a document stamped
as filed, rather than the entire document filed.
The alleged retaliatory act by Defendant Dr. Matusen (a
therapist), consists of refusing to give Plaintiff credit for completion
of “tactics group therapy” because Plaintiff was at times unable to
attend because of Plaintiff’s scheduled dialysis. Plaintiff alleges that
Dr. Matusen advised Plaintiff to skip the dialysis and attend the
therapy sessions if Plaintiff wanted to complete the therapy group.
ANALYSIS
None of the alleged actions by Defendant Lynne Shelton violate
Plaintiff’s constitutional rights. A stamp on mail declaring that the
mail is from or to a facility detaining sexually violent persons does
not implicate a federal right. See Carpenter v. Phillips, 10-CV-3180
(C.D. Ill., Judge Baker, 7/30/10 order)(dismissing for failure to
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state a claim an identical claim by a different Rushville resident),
affirmed in Carpenter v. Phillips, 2011 WL 1740102 (7th Cir.
2011)(not published in Federal Reporter).
As for the allegations about opening legal mail, no plausible
inference arises that Ms. Shelton is reading Plaintiff’s confidential
legal mail. The kind of legal mail protected by the Constitution in
the detention setting is mail to or from the detained person’s lawyer.
A guard may open a letter from a prisoner’s lawyer in the prisoner’s
presence to check for contraband but may not read the letter.
Guajardo-Palma v. Martinson, 622 F.3d 801, 804 (7th Cir. 2010). In
contrast, mail from the court is not confidential because court mail
generally concerns matters of public record, which “prison officials
have as much right to read as the prisoner.” Guarjardo-Palma, 622
F.3d at 806. Therefore, Ms. Shelton’s alleged practice of leaving
mail from the court addressed to the plaintiff in an area where the
mail may be read by others does not violate the Constitution.
The Court does not understand what Plaintiff means when he
alleges that Ms. Shelton returns only the first “stamped as filed”
page of a filed document. The Court is aware that Rushville
residents scan their filings electronically to the Central District of
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Illinois. Residents then keep their complete original filing. The
clerk in the Central District e-mails a “notice of electronic filing” to
the Rushville Treatment and Detention facility, confirming receipt of
the resident’s filing. The facility then prints out that notice of
electronic filing along with the first page of the filing and delivers
those two pages to the resident. If this is the process Plaintiff
challenges, there is nothing unconstitutional about it.
As explained above, none of Ms. Shelton alleged acts
independently violate the Constitution, but that does not end the
analysis. Plaintiff alleges that Ms. Shelton’s actions were taken in
retaliation for his lawsuit and unspecified grievances. Actions
which are constitutional can become unconstitutional if done in
retaliation for the exercise of a constitutional right. DeWalt v.
Carter, 224 F.3d 607, 618 (7th Cir. 1999). However, no plausible
inference arises from the facts alleged that Ms. Shelton was
motivated by retaliation for Plaintiff’s lawsuit or grievances. See
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)(“Threadbare recitals
of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.”). Further, Ms. Shelton’s alleged
actions are not adverse enough to state a claim for retaliation. The
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alleged retaliation must be severe enough to “deter a person of
ordinary firmness” from exercising his First Amendment rights, and
Ms. Shelton’s actions do not rise to that level. See Bridges v.
Gilbert, 557 F.3d 541, 555 (7th Cir. 2009)(“‘It would trivialize the
First Amendment to hold that harassment for exercising the right of
free speech was always actionable no matter how unlikely to deter a
person of ordinary firmness from that exercise . . . .”)(quoting Bart v.
Telford, 677 F.2d 622, 625 (7th Cir. 1982).
As to Dr. Matusen, no plausible inference arises that Dr.
Matusen’s failure to accommodate Plaintiff’s dialysis schedule was
in retaliation for any of Plaintiff’s grievances or lawsuits. Even at
the notice pleading stage the allegations must raise the possibility
of a right to relief above the speculative level. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007).
The plaintiff might be able to state some other kind of federal
claim against Dr. Matusen arising from Dr. Matusen’s alleged
refusal to work around Plaintiff’s dialysis schedule. Plaintiff is
entitled to treatment for the mental disorder that is causing his
detention. See Youngberg v. Romeo, 457 U.S. 307, 317-18 (1982).
If the “tactics group therapy” is necessary for Plaintiff to progress
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through treatment, and Dr. Matusen refuses to make the therapy
available to Plaintiff because of Plaintiff’s dialysis, a plausible claim
may arise for deliberate indifference to Plaintiff’s need for mental
health treatment and/or for failure to provide reasonable
accommodation under the Rehabilitation Act, 29 U.S.C. Section
794a, et seq.1 The Rehabilitation Act applies to entities receiving
federal funding, including prisons, and prohibits the denial of
access to programs because of a participant’s disability. Jaros v.
Illinois Dept. of Corrections, 684 F.3d 667, 671-72 (7th Cir. 2012).
However, inferring these claims against Dr. Matusen is too far
of a stretch under the scant facts alleged. Plaintiff does not provide
any dates on which he actually had to miss the group therapy for
dialysis, nor does he say how often this occurred, whether the
completion of the tactics group therapy is necessary for his
progression in treatment, how many times per week the tactics
group meets, how many sessions Plaintiff must attend to achieve
completion, and what other therapy groups, if any, are available to
Plaintiff that might be substituted. In fact, Plaintiff alleges that the

1

 A claim under the Americans with Disabilities Act might also be stated, but the remedies are coextensive with the 
Rehabilitation Act, so generally the analysis proceeds under the Rehabilitation Act to “avoid thorny questions of 
sovereign immunity.”  Jaros v. IDOC, 684 F.3d 667, 671‐72 (7th Cir. 2012). 

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first tactics group therapy session was scheduled for a Tuesday and
that Plaintiff’s dialysis is typically scheduled for Mondays,
Wednesdays, and Fridays. Generally, then, there should be no
conflict between the therapy and the dialysis, at least on the
present allegations.
IT IS ORDERED:
1.

Plaintiff’s complaint is dismissed for failure to state a

federal claim.
2.

By January 5, 2015, Plaintiff may file an amended

complaint in accordance with the above opinion. If Plaintiff does
not file an amended complaint, then this case will be dismissed,
without prejudice, and closed.
3.

Plaintiff’s motion to request counsel is denied with leave

to renew (4). The Court cannot consider the merits of the motion
until Plaintiff shows that he has made reasonable efforts to find
counsel on his own. Pruitt v. Mote, 503 F.3d 647, 654-55 (7th Cir.
2007). Typically, this requires writing to several different law firms
and attaching the responses to the motion for appointment of
counsel. If Plaintiff renews his motion for counsel, he should set
forth his educational level, work experience inside and outside the
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facility, litigation experience, and classes he has taken inside the
facility.
ENTERED: 12/8/14
FOR THE COURT:
s/Joe Billy McDade
JOE BILLY MCDADE
UNITED STATES DISTRICT JUDGE

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